1. What are the elements of the criminal subject of the crime of infringement of trade secrets
1. The criminal subject of this crime is a general subject. Any natural person who has reached the age of criminal responsibility and has the capacity to act can constitute this crime. In addition, units can also constitute the criminal subject of this crime.2. If the unit commits this crime, the person in charge who is directly responsible for it and other directly responsible personnel Criminal liability shall be pursued in accordance with the provisions of this article. In our country, the subjects constituting the crime of infringement of trade secrets usually include the following types:
(1) The company's Chairman, managers and other management personnel, employees of enterprises, etc.;
(2) Now retired or transferred personnel of the original enterprise;
(3) Being entrusted and therefore knowing and mastering the trade secrets People, such as lawyers, patent agents, economic consultants, etc.;
(4) Have had any experience with the enterprise Partner of the partnership;
(6) People who have the power to supervise, inspect, investigate and manage enterprises, such as auditors, tax personnel, personnel of competent administrative agencies, industrial and commercial managers, etc.;
(7) Except for the above five types of personnel who may become subject elements due to disclosure of trade secrets, any other personnel may be subject to disclosure of trade secrets. Theft, inducement, coercion or other unfair means to obtain the right holder’s trade secrets becomes the subject of this crime;
3. Legal basis: "Criminal Law"
Article 219 [Crime of Infringement of Trade Secrets] Any of the following acts of infringement of trade secrets, the circumstances If the case is serious, he shall be sentenced to fixed-term imprisonment of not less than three years and concurrently or solely with a fine; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than 10 years and shall also be fined:
(1) Obtaining the right holder’s business secrets through theft, bribery, fraud, coercion, electronic intrusion or other improper means;
(2) Disclosing, using or allowing others to use the obligee’s business secrets obtained by means of the previous paragraph;
(3) Violating confidentiality obligations or violating the obligee’s regulations on keeping business secrets Obtain, disclose, use or allow others to use the trade secrets in their possession knowingly knowing the acts listed in the preceding paragraph.
Any use of the trade secret shall be regarded as infringement of the trade secret.
The rights holder mentioned in this article refers to the owner of the trade secret and those with the permission of the owner of the trade secret. User of trade secrets.
2. Issues in identifying evidence in infringement of trade secrets
1. On the one hand, it manifests itself as the non-cooperation of the right holder. Often the right holder is unwilling to provide the trade secrets it possesses as evidence, and is even less willing to submit the technical information to the relevant departments for identification, which results in infringement by the perpetrators. There are problems with the evidence of trade secrets;
2. The second aspect is the information leaked to the perpetrator The issue of identification of whether it is a trade secret. If the identification conditions are met, the relevant technical information should be entrusted to a professional department for identification. Because when examining whether the technical information leaked by the actor is a trade secret, very complex technical issues are often involved. The judge will Very little is known about this type of professional technology, so how to determine that the professional technology is a trade secret. In this case, professional identification is particularly important. Because professionals have a better understanding of the latest domestic and foreign situations of professional technology, and they can use it to understand the latest situation of professional technology at home and abroad. The conclusion drawn after data retrieval and comparative analysis has a certain degree of scientificity and objectivity. The judge is a neutral referee, and the identification conclusion based on which the case is finalized must be cross-examined in court and the opinions of both parties are heard, and then comprehensively reviewed in conjunction with other evidence. Decide whether to accept it after judgment.
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